State Consumer Disputes Redressal Commission
Ankush Gupta vs M/S Piyush Infrastructure Pvt. Ltd. on 12 May, 2017
Daily Order IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments : 12.05.2017 Date of Decision : 30.05.2017 First Appeal No. 205/2017 IN THE MATTER OF: Mr. Ankush Gupta S/o Shri Suresh Kumar Gupta R/o A-211, Majlis Park Delhi-110033. ......Appellant Versus M/s Piyush Infrastructure India Pvt. Ltd. Having Corporate Office at: A-16/B-1, Mohan Cooperative Industrial Estate Main Mathura Road New Delhi. ....Respondent CORAM HON'BLE SH. O.P.GUPTA, MEMBER(JUDICIAL) HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgment? Yes/No
2. To be referred to the reporter or not? Yes/No Present : Shri Ratneshwar Das, Counsel for the appellant.
PER : HON'BLESHRI ANIL SRIVASTAVA, MEMBER Challenge in the appeal by the complainant is to the order dated 17.03.2017 passed by the Consumer Dispute Redressal Forum(10), Delhi in CC No. 302 of 2013 in the matter of Mr. Ankush Gupta vs. M/s Piyush Infrastructure India Pvt. Ltd. By the impugned order the District Fora has dismissed the complaint holding that shop in question booked by the complainant is for commercial purpose and therefore he is not a consumer within the meaning section 2(1) (d) of the Consumer Protection Act 1986.
2. The factual score that is essential to be depicted is that the complainant had booked a unit in May 2008 in the proposed Piyush Metropolitan Mail, Faridabad Project. The project could not be completed within time. Respondent continued making demands. Complainant sought clarification about the possibility of time by which the project would be complete but all his efforts done in this behalf with the respondent, proved an exercise in futility inasmuch as the respondent made no response to the references made by the complainant. The complainant after making substantial payment finally stopped making payment for want of clarification from the respondent and also finding no progress in the project.
3. Ultimately on 3rd March 2011 the complainant received a letter from the respondent cancelling his booking. The complainant alleging that this action on the part of the respondent tantamount to deficiency in service and accordingly sought for the refund of the amount deposited alongwith interest.
4. District Fora has taken a view that the complainant is not a consumer holding that he has sought to purchase a shop in the Mall which cannot be for a purpose other than commercial.
5. Before processing the case it would be necessary to peruse the definition of consumer as contemplated under section 2(i) (d) of the Consumer Protection Act 1986 read as under:-
"Section 2(i)(d) "Consumer " means any person who
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resal or for any commercial purpose; or
(i) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;
Explanation:- For the purpose of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment."
6. Point for consideration is whether the complainant before the District Fora was a consumer or not. The obtaining factual matrics are to be tested on the touch stone of the legal position. It would be appropriate in the first instance to consider the grounds of appeal preferred before this Commission. The appellant has stated that the impugned order suffers from legal infirmity on the face of it. District Fora failed to appreciate that the complainant is a genuine consumer under the definition contained in the provision of Consumer Protection Act. The appellant has stressed a point that they have booked a shop for their bonafide requirement and personal use. This aspect according to the appellant/complainant has not been considered or examined by the Ld. District Fora in the right perspective and as per the law settled by the Hon'ble Apex Court .
7. The District Fora while holding that the complaint is not a consumer has referred to a judgment of the Hon'ble National Commission in the matter of Rajesh Gulati & Anr. Vs. DLF Commercial Ltd. in CC No. 50/2011 decided on 18.03.2016 holding that to be a consumer one has to establish that space booked is for the purpose of earning livelihood and secondly for self employment. This involves two issues for consideration, namely whether the space booked for earning livelihood and for self employment.
8. We have perused the pleadings. It is trite law that while adjudicating on such issues the pleadings have to be read in totality. We do not find anywhere in the pleadings either in the complaint before the District Fora or in the appeal filed before this Commission, where the averments to the effect that the shop proposed to be purchased is for self use and secondly for earning livelihood, the components essential to establish the factum about the complainant being a consumer. In the absence of this factum the only inescapable and inevitable conclusion is that the complainant in the process of buying a shop is not a consumer. In these circumstances holding the complainant not a consumer, ,we have no reason to differ from the orders passed by the Ld. District Fora as we notice no infirmity in the impugned order.
9. We order accordingly.
10. Copy of this order be sent to both the parties free of cost as contemplated under the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005.
Copy of the order be sent to District Forum for information.
File be consigned to records.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER(JUDICIAL)